How Biden and IRS Unlawfully Expanded Obamacare

President Joe Biden announced Tuesday that his administration had expanded Obamacare.

Congress didn’t legislate the expansion. The Internal Revenue Service did.

The IRS scrapped an Obama administration regulation that faithfully implemented the Obamacare statute, officially called the Affordable Care Act, which became law in 2010 on a party-line vote.

At issue is whether dependents of a worker with an offer of employer-sponsored coverage can shun that coverage and claim premium tax subsidies for Obamacare policies instead.

The statute and the Obama administration regulation were clear on this point. Such dependents qualify for tax-subsidized policies only if the cost of self-only employer-sponsored coverage exceeds 9.5% of the worker’s household income. If not, neither the worker nor her dependents could receive Obamacare premium subsidies.

Many complained about this provision, which they called the “family glitch.” They said that dependents should be eligible for subsidies if premiums for employer-sponsored family coverage —rather than self-only coverage—were too costly. The Obama administration rejected this approach and followed the law as Congress wrote it.

In the intervening 12 years, lawmakers have introduced bills to base eligibility for subsidies on the cost of family coverage. Congress adopted none of them.

Biden’s IRS did what Congress had left undone. It effectively amended the tax code, creating eligibility for premium subsidies based on the cost of employer-sponsored family coverage.

According to an analysis by the Urban Institute, the principal effect of this policy will not be to reduce the number of Americans who are uninsured. Although a family coverage affordability test would make 4.8 million dependents eligible for federal subsidies, the analysis found that the policy will reduce the number of uninsured by only 190,000. The vast majority of dependents who benefit from this change currently have health insurance.

The new rule likely will encourage some employers to reduce or eliminate their contributions to dependent coverage. Employers, on average, pay 72% of premiums for dependents. With companies struggling to cover rising health insurance costs, some may let taxpayers foot the bill for covering their employees’ family members.

The Treasury Department doesn’t think that will happen. Still, officials there estimate that this unlawful regulation will cost the federal government $38 billion over the next 10 years.

That’s a mere pittance compared with the Biden administration’s $400 billion student loan forgiveness fiat, but it comes on top of the net $4.8 trillion increase in federal debt resulting from legislation and regulations during the Biden administration’s first 21 months in office.

The Biden administration has accompanied this pattern of fiscal recklessness with breaches of its statutory and constitutional limits.

Sometimes, as with the Occupational Safety and Health Administration’s vaccine mandate and the transportation mask mandate imposed by the Centers for Disease Control and Prevention, the courts rein them in. Undeterred by these reminders of the limits on its power, the administration frequently has ignored the law (as with student loans) or, in this case, rewritten it.

More troubling still is the politicization of federal agencies. The Justice Department has taken actions that appear politically motivated against pro-life activists and parents who oppose the teaching of critical race theory in their children’s schools.

Now the IRS has reversed a longstanding regulation that the Obama administration promulgated and contravened a law widely regarded as President Barack Obama’s signal domestic policy achievement.

Once agencies charged with enforcing federal laws and collecting taxes begin to pursue political agendas, there is no turning back. The next administration can be expected to use the Justice Department and IRS—newly fortified with 87,000 additional employees—for its own political ends.

The Biden administration may not have thought through these implications. Administration officials instead exude the arrogance of people who, having gained power, behave as if they always will wield it.

Their contempt for hearing criticism of their new Obamacare regulation is a case in point. Once an agency has completed drafting a rule, officials send it to the Office of Management and Budget for final review. Members of the public may request a meeting with OMB to present comments.

I was part of a group that requested a meeting, along with colleagues from the Paragon Policy Institute, the American Enterprise Institute, and the Galen Institute. Officials from OMB, the IRS, and the Treasury Department were to attend.

But when we logged onto the Zoom call, no one from the administration showed. OMB blamed a “Zoom failure” and offered several rescheduling options.

The meeting never happened.

OMB first delayed rescheduling the meeting, blaming Hurricane Ian. (Only two participants, Paragon’s Brian Blase and I, live in Florida, and the storm didn’t affect our participation.)

OMB then approved the regulation and canceled the meeting. And we were not the only critics of the rule who had our meeting abruptly canceled.

I don’t for a moment imagine these meetings would have changed any minds. Canceling it merely spared Biden administration officials the discomfort of hearing that the rule was unlawful and reflected the politicization of the IRS.

Power breeds arrogance, and this administration has plenty of both.

Article cross-posted from Daily Signal.